UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-7796

ROBERT LEE ARRINGTON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CR-91-79, CA-96-9-4-BO)

Submitted: May 28, 1998

Decided: July 27, 1998

Before WILKINS and LUTTIG, Circuit Judges, and

HALL, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Robert Lee Arrington, Appellant Pro Se. Fenita Morris Shepard,

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North

Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Robert Lee Arrington was convicted of possession with the intent

to distribute crack cocaine (21 U.S.C. § 841(a)(1) (1994)), using a

firearm during a drug trafficking crime (18 U.S.C.A.§ 924(c) (West

1994 & Supp. 1998)), and possessing an unregistered short-barrel gun

without a serial number (26 U.S.C. §§ 5861(d), (i), 5871 (1994)).

Arrington appeals from the district court's orders denying his motion

pursuant to 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998) and his

Fed. R. Civ. P. 59(e) motion for reconsideration. We vacate the district court's orders and remand for further proceedings consistent with

this opinion.

In September 1990, a confidential informant made a controlled buy

of crack cocaine from Arrington at Arrington's residence. Following

the purchase, a search warrant for Arrington's residence was

obtained. During the search, officers found five grams of crack

cocaine, a double-barrel shotgun, a single-barrel shotgun, and cash.

Arrington was subsequently convicted and did not appeal. Arrington

later filed this § 2255 motion asserting that his § 924(c) conviction

was improper in light of Bailey v. United States , 516 U.S. 137 (1995),

because he did not "use" a firearm in relation to a drug trafficking

offense. The district court dismissed the motion and Arrington filed

a Rule 59(e) motion for reconsideration. The court then denied

Arrington's motion for reconsideration and Arrington timely appealed

both orders.

This court reviews a denial of a motion for reconsideration for an

abuse of discretion. See Collison v. International Chem. Workers

Union Local 217, 34 F.3d 233, 236 (4th Cir. 1994). The Court recognizes three grounds for Rule 59(e) relief: (1) to accommodate an

intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or

prevent manifest injustice. Id. (quoting Hutchinson v. Staton, 994

F.2d 1076, 1081 (4th Cir. 1993)). The timely appeal of an order

regarding a Rule 59 motion brings both the Rule 59 order and the

underlying order before this court. See Dove v. CODESCO, 569 F.2d

807, 809-10 (4th Cir. 1978).

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Under § 924(c)(1), it is unlawful to use or carry a firearm during

and in relation to any crime of violence or drug trafficking crime. In

Bailey, the Supreme Court held that in order to obtain a conviction for

"using" a firearm in the commission of a drug crime, the government

must show "active employment" of the weapon. See Bailey, 516 U.S.

at 144. Active employment may include "brandishing, displaying,

bartering, striking with, and, most obviously, firing or attempting to

fire a firearm." Id. at 148. There is no evidence in the record that

Arrington actively employed a weapon during a drug trafficking

crime. The district court stated that Arrington used the guns to

embolden himself. However, Bailey overruled previous precedent in

this Circuit holding that evidence is sufficient to support a § 924(c)

conviction if a firearm was present for protection or to embolden the

owner, whether or not it was actually used. See, e.g., United States v.

Nelson, 6 F.3d 1049, 1053-54 (4th Cir. 1993); United States v.

Brockington, 849 F.2d 872, 876 (4th Cir. 1988); see also Bailey, 516

U.S. at 149 (inert presence of a firearm, without more, is not enough

to trigger § 924(c)). In addition, the Supreme Court has recently held

that a federal prisoner may rely on Bailey in seeking § 2255 relief in

relation to a § 924(c) conviction that became final before Bailey

issued. See Bousley v. United States, #6D 6D6D# U.S. ___, 1998 WL 244204

(U.S. May 18, 1998) (No. 96-8516). Arrington, however, must demonstrate "actual innocence" to overcome his procedural default in not

raising the claim on direct appeal. See id. Thus, because Arrington

shows a clear error of law, we find that the court abused its discretion

in denying Arrington's motion for reconsideration and his § 2255

motion.

Accordingly, we vacate the district court's orders denying Arrington's motion for reconsideration and his § 2255 motion and remand

for further proceedings consistent with this opinion. Further, we deny

Arrington's motion for release pending appeal. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid

the decisional process.

VACATED AND REMANDED

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